Is a processing in which workers and
employers make claims upon each other and resolve them through a process of
negotiation leading to collective agreements that are mutually beneficial. In the process different interests are
reconciled. For workers joining together allows them to have a more balanced
relationship with their employer ensuring better conditions of employment. For employers,
free association enables competition of interests is constructive, fair and
based on a collaborative effort to raise productivity.
Part E of Chapter III of the LRA makes
provision for the establishment of statutory councils, sectoralbodies that may be
established in different enterprise sectors
in respect of which no bargaining council is registered. A framework that the
LRA creates a platform for s23(5) of the Constitution a right to engage in collective bargaining
and avoid industrial conflict.
Parties in collective bargaining: trade
unions, employers and employer’s
organisations
Chapter VI of the LRA regulates trade
unions and employer organisations. A ‘trade union’ is defined in s213 of the LRA
as an association of employees whose principal purpose is to regulate relations
between employees and employers. An employers’ organisation is defined in the
same section as any number of employers associated together for the purpose of
regulating relations between employers and employees/or trade unions.
Registration for registration of trade
unions or employers’ organisations
The LRA establishes a simple procedure for
registration of trade unions and employers’ organisation the process is
directed primarily to ensure democratic practices, financial accountability,
independence and non discrimination within employers organisation and trade
unions. Any trade union or employers’ organisation may approach the Registrar
at the Department of Labour with the following
requirements :1. A namefor it(not
resembling a name of another trade union), 2.valid constitution as per s95(5)
and (6) 3. Its address in the republic 4. It must be independent(not under
direct control of the employer or
employer’s organisation) . If successful
in the registration process then a registered trade union or employers’
organisation becomes entitled to: Conclude collective agreements, participate in
the establishment of a bargaining statutory and council, workplace forum ,
represent members in dispute resolution proceedings and qualify for statutory
organisational rights.
1.
Bargaining Councils
- One of the purpose of the LRA is to promote collective bargaining, primary vehicle to achieve this is the bargaining councils at a sector level. They are voluntary bodies, established by the registered trade unions and registered employers’ organisations that have achieved a threshold of representivity in a defined sector. Whose main function is to serve a forum for the negotiation of terms and conditions of employment of the members of the union party to the council, sometimes for all employees engaged in the sector. The state be can a party to any bargaining council if it is an employer. Establishing the council is done the same way as applying to be a registered trade union and the employers ‘ organisation.
Powers and functions of the bargaining council
Conclude and
enforce collective agreements:prevent and resolve disputes;establish and
administer a fund to be used for resolving disputes; promote and establish
training and education schemes;establish and administer
pension,providentfunds,medicalaids,sickpay,holiday,unemployment and training
schemes or funds or any similar schemes or funds for the benefit of one or more
of the parties to the bargaining council or their members and develop proposal
for submission to NEDLAC or any other appropriate forum on policy and
legislation that may affect the sector and arear.
Bargaining
councils in sectors of the public service
The Public
Service Co-ordinating Bargaining Council
may designate a sector of the public service for the establishment of a
separate bargaining council which will have exclusive jurisdiction in respect
of matters that are specific to that
sector and in respect of which the state as the employer has the requisite
authority to conclude collective agreements and to resolve labour disputes.
Statutory
councils
They are the
creatures of compromise, the idea behind statutory councils is that they might
be established in sectors where union representativity is relatively low and
where there is no bargaining councils existing. They have very limited powers
and functions.
Collective
agreements
They are defined
as written agreements concerning terms and conditions of employment or other
matters of mutual interestconcluded between
registered trade unions and one or more employers or one or more employers’
organisation. With regards to the scope covered in collective agreements, it
includes matters of mutual interests only issues of employer-employee
relationship.eg wages and health and safety at work but also issues that are
generally of significance or of interest to those parties.
The binding
effect of the collective agreements
They are
regulated by common law contractual rules.
Binding to: the parties of the agreement ; each party to the collective
agreement; and the members of a registered trade union and the employers who
are members of a registered employers’ organisation that are party to the
collective agreement if the collective
agreement regulates :terms and conditions of employment; or the conduct of the
employees in relation to their employers; employees who are not members of the
registered trade union or unions that
are party to the collective agreement if: the employees are identified in the
agreement; the agreement expressly binds the employees; and the trade union or
unions that are party to the collective agreement have as their members the majority of employees employed by the employer in the work place.
The collective
agreement varies any contract of employment between an employer and an employee
who are both are both bound by the collective agreement. This variation takes
place by operation of law. This provision should be read with section 199 of
the LRA. The section provides that a contract of employment may not permit an
employee to be paid less than the remuneration prescribed by that agreement or
be granted a benefit that is less favourable than that prescribed by the collective agreement. A contract of employment may not waive the
application of any provision of a collective agreement. Any provision in a
contract of employment in breach of these provisions is invalid.
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